Research on Tort Liability System in Modern France; Tort is a civil illegal act against someone; Crime, on the other hand, is an illegal act against individuals, society or the country in violation of the provisions of the interests guaranteed by the state.
There is a big difference in subjective fault between them. Tort faults include intentional and negligence, and usually only need to realize their own imputability, and do not need to realize the actual damage that their actions may bring. The negligence in criminal law should not only realize the imputability (illegality) of one's own actions, but also realize the harmful results that one's actions may cause. However, there are great similarities between tort law and criminal law, and the biggest similarity is that both of them infringe on certain rights. It is based on this that there is little difference between criminal law and tort law in the United States. From the above point of view, we can have a full understanding of the rights in the whole constitution by studying tort law and criminal law together. Judging from the history of criminal law, criminal law is born out of tort law.
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Constitutive elements
Illegal
Infringement mentioned in the copyright law refers to the act of violating the obligations stipulated in the copyright law and infringing on the personal rights or property rights enjoyed by others according to the copyright law. If the infringement of others' property rights is directly based on the breach of contractual obligations, this kind of behavior is usually only regarded as a breach of contract, and the actor shall bear the responsibility for breach of contract.
In general, an act that constitutes infringement of copyright or rights related to copyright and should bear tort liability should meet the following conditions:
It is illegal. Copyright law stipulates that citizens, legal persons or non-legal entities with certain qualifications enjoy copyright or copyright-related rights and interests, which also stipulates that all other people's relative obligations shall not be hindered. Violation of these obligations is a violation of the law. In some cases, the law does not stipulate the relative obligations of others, so there will be no illegal behavior. For example, using works or materials that are not protected by copyright, using them without the permission of the copyright owner by law, and carrying out acts beyond the control of copyright or copyright-related rights and interests are not infringing acts in copyright law.
damage fact
there is an objective existence of damage fact. Damage refers to the loss of property and mental damage caused by behavior. Damage is the objective consequence of illegal behavior. If an act is being planned and has not caused damage, it does not constitute an infringement. For example, the publishing house took a manuscript of the author without authorization and prepared it for publication, but it was not published for some subjective reasons, so it did not constitute infringement. But if it has been published, even if a book has not been sold, it should be considered as infringement.
Causality
There is a causal relationship between damage facts. In other words, the implementation of an act is the cause of the result of damaging the facts. For example, a certain B rewrites an article based on a certain A into another article and submits it to a newspaper for publication without authorization. This behavior of a certain B causes damage to the facts, so it has a condition for infringement. If a certain B is just practicing writing, and an article based on a certain A is rewritten into another article, and it is not intended to be published, but after being seen by an enthusiastic C, it is recommended to the newspaper for publication without authorization, and it should be considered that there is a causal relationship between the behavior of a certain C and the fact that A is damaged. As for the rewriting of a certain B only for practicing writing, it should be within the scope of reasonable use, and there is no necessary causal relationship with the damage facts.
bear civil liability
the person who commits the act is at fault, or although there is no fault, he still bears civil liability according to law. That is to say, the actor knows the harmful consequences of an act when he carries out it, or he should have foreseen it but didn't, or he has foreseen it and trusted it to avoid it. For example, a publishing house knows that a work has copyright, or does not think that it has no copyright, but publishes the work without the consent of the copyright owner. This kind of intention or negligence is fault, so it has a condition for infringement. If a publishing house publishes the works of author B without knowing the guarantee of author B, and then author A claims that the works of author B are infringing products, the publishing house immediately stops publishing and investigates and verifies them, and the publishing house is not at fault, and usually only author B bears the tort liability; If the publishing house doesn't stop publishing, the publishing house will be at fault if the author B's works are indeed infringing products, so it will be jointly and severally liable for compensation with the author B as the infringer. In addition, if the law clearly stipulates that the actor should be liable for damages even if there is no fault, the actor is also an infringement.
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Tort liability and contractual liability
Tort law regulates the legal relationship between ordinary people (that is, the "general protection obligation"), which is different from the legal relationship between specific counterparties (that is, the "special protection obligation"). Therefore, in the development of civil law system (especially German law), compared with the contractual liability whose application scope is expanding (such as the liability for contracting negligence)
In tort law, the obligor assumes mostly negative obligations of omission, while in contract law, due to the contact of the parties, it often assumes positive obligations. In addition, contract law usually needs to protect the trust interests between the parties, while tort law does not. Judging from the existing legal practice in China, the difference between the two is that the liability for breach of contract caused by contract law cannot claim compensation for mental damage, but infringement may bear the responsibility for mental compensation.
the concept and characteristics of tort civil liability
(1) the concept of tort civil liability
a citizen or legal person who infringes on the state or collective property and infringes on other people's property or person through fault shall bear civil liability.
if there is no fault, but the law stipulates that it should bear civil liability, it should bear civil liability.
(2) Characteristics of tort civil liability
① Tort civil liability is legal liability, not moral liability;
② Tort liability is a civil legal liability, not a criminal or administrative liability;
③ The way to bear tort liability is mainly property liability;
④ the tort liability is mainly compensatory.
Composition of responsibility and mode of responsibility
Composition
An actor who infringes upon the civil rights and interests of others due to his fault shall bear tort liability.
if the actor damages the civil rights and interests of others, regardless of whether the actor is at fault or not, the law stipulates that he should bear tort liability, such provisions shall prevail.
if two or more persons * * * commit an infringement and cause damage to others, they shall be jointly and severally liable.
whoever instigates or helps others to commit an infringement shall be jointly and severally liable with the perpetrator.
if two or more people commit acts that endanger the personal and property safety of others, and the actions of one or more of them cause damage to others, and the specific infringer can be identified, the infringer shall bear the responsibility; If the specific infringer cannot be determined, the actor shall bear joint and several liability.
if two or more persons respectively commit tort and cause the same damage, and each person's tort is enough to cause all damage, the perpetrator shall bear joint and several liability.
if two or more persons respectively commit infringement and cause the same damage, and the responsibility can be determined, each person shall bear the corresponding responsibility; If it is difficult to determine the size of the liability, it shall be equally liable for compensation.
if the law provides for joint and several liability, the infringed party has the right to request some or all of the joint and several persons to bear the liability.
the joint and several responsible persons shall determine the corresponding compensation amount according to their respective responsibilities; If it is difficult to determine the size of the liability, it shall be equally liable for compensation.
those jointly and severally liable who pay more than their own compensation have the right to recover from other jointly and severally liable persons.
Mode
(1) Stop the infringement;
(2) remove obstacles;
(3) eliminate the danger;
(4) returning property;
(5) restitution;
(6) compensation for losses;
(7) apologize;
(8) eliminate influence and restore reputation.
The above methods of tort liability can be applied separately or in combination.